Citation NR: 9628554
Decision Date: 10/11/96 Archive Date: 10/25/96
DOCKET NO. 94-39 116 ) DATE
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On appeal from the
Department of Veterans Affairs (VA) Regional Office (RO) in
Phoenix, Arizona
THE ISSUES
1. Whether new and material evidence has been submitted to
reopen a claim of entitlement to service connection for
schizophrenia.
2. Whether new and material evidence has been submitted to
reopen a claim of entitlement to service connection for a
back disorder.
3. Entitlement to service connection for post-traumatic
stress disorder (PTSD).
4. Entitlement to service connection for residuals of
exposure to DDT and other chemical agents.
5. Entitlement to service connection for bronchitis.
REPRESENTATION
Appellant represented by: Veterans of Foreign Wars of
the United States
ATTORNEY FOR THE BOARD
E. J. McCafferty, Counsel
INTRODUCTION
The veteran served on active duty for training from August
1958 to February 1959 and on active duty from November 1960
to July 1965.
The issue of entitlement to service connection for bronchitis
will be the subject of a remand which follows this decision.
CONTENTIONS OF APPELLANT ON APPEAL
The veteran contends, in essence, that the RO committed error
in denying the claims of entitlement to service connection
for schizophrenia and a back disorder. The veteran argues
that these disorders are the result of service and that
service connection should be granted on that basis. The
veteran also seeks service connection for PTSD and for
exposure to DDT and other chemical agents. He feels that his
exposure should be sufficient to warrant service connection
for some sort of disability.
DECISION OF THE BOARD
The Board, in accordance with the provisions of 38 U.S.C.A.
§ 7104 (West 1991 & Supp. 1995), has reviewed and considered
all of the evidence and material of record in the veteran's
claims files. Based on its review of the relevant evidence
in this matter, and for the following reasons and bases, it
is the decision of the Board that new and material evidence
has not been submitted to reopen the claims of entitlement to
service connection for schizophrenia and a back disorder. It
is the further decision of the Board that the veteran has not
presented evidence sufficient to justify a belief by a fair
and impartial individual that his claims for service
connection for PTSD and residuals of exposure to DDT and
other chemical substances are well grounded.
FINDINGS OF FACT
1. All relevant evidence necessary for an equitable
disposition of the claims of entitlement to service
connection for schizophrenia and a back disorder has been
obtained.
2. In a rating action of November 1967, the RO denied the
claims of entitlement to service connection for schizophrenia
and a back disorder based on findings that neither
schizophrenia or a chronic back disorder was present during
service and that schizophrenia was not manifested within the
first year following service discharge. The claim for
service connection for a back disorder based on aggravation
was denied by rating action in May 1978.
3. The veteran was notified of these decisions and appeal
them.
4. Evidence submitted since the RO's November 1967 and May
1978 decisions is cumulative in nature and does not tend to
show that schizophrenia or a back disorder was incurred, or
became worse, in service.
5. It is not shown that the veteran has PTSD.
6. It is not shown that the veteran was exposed to DDT or
other chemical agents during service or that he has any
disability as a residual of such exposure.
CONCLUSIONS OF LAW
1. The November 1967 denial of service connection for
schizophrenia and the November 1967 and May 1978 denial of
service connection for a back disorder are final; new and
material evidence has not been received to reopen those
claims. 38 U.S.C.A. §§ 5108, 7105 (West 1991 & Supp. 1995);
38 C.F.R. § 3.156(a) (1995).
2. The claims for service connection for PTSD and residuals
of exposure to DDT and other chemical agents are not well
grounded. 38 U.S.C.A. §§ 1110, 1131, 5107 (West 1991 & Supp.
1995).
REASONS AND BASES FOR FINDINGS AND CONCLUSIONS
I
In the November 1967 rating decision, the RO denied service
connection for schizophrenia and a back disorder. The RO
reviewed the veteran's contentions, the service medical
records, and the postservice medical records. The claim for
service connection for a back disorder including based on
aggravation was again denied based on the evidence then of
record by rating action in May 1978.
At the time of the November 1967 rating decision, the
evidence showed that there was no indication of the presence
of schizophrenia during service or within the first
postservice year. The appearance of schizophrenia was shown
to have occurred during the second postservice year and
because of this, the veteran was found entitled to treatment
for schizophrenia under the provisions of 38 U.S.C.A. § 1702
(West 1991 & Supp. 1995). The veteran was advised of the
denial of service connection; but he did not file a timely
appeal, and the decision became final. Error in the rating
is not alleged.
Service connection may be granted for disability resulting
from disease or injury incurred in or aggravated by active
military service. 38 U.S.C.A. §§ 1110, 1131. Service
connection may also be granted on a presumptive basis for
certain chronic disabilities, including schizophrenia, when
they are manifested to a compensable degree within the
initial postservice year. 38 U.S.C.A. § 1112 (West 1991 &
Supp. 1995); 38 C.F.R. §§ 3.307, 3.309 (1995). If no notice
of disagreement is filed within the prescribed period, the
action or determination shall become final and the claim will
not thereafter be reopened or allowed, except as may
otherwise be provided by regulations not inconsistent with
this title. 38 U.S.C.A. § 7105 (c). If new and material
evidence is received with respect to a claim which has been
disallowed, the claim will be reopened, and the former
disposition reviewed. 38 U.S.C.A. § 5108; 38 C.F.R.
§ 3.156(a).
In order to warrant reopening a previously and finally
disallowed claim, the newly presented or secured evidence
must not be cumulative of evidence of record at the time of
the last prior final disallowance and must tend to prove the
merits of the claim as to each essential element that was a
specified basis for the last final disallowance of the claim.
Evans v. Brown, No. 93-1220 (U.S. Vet.App. Aug. 1, 1996).
Hence, to reopen the claim for service connection for
schizophrenia, the veteran must submit evidence that his
schizophrenia was present during service or within the first
post service year.
Since the RO's 1967 final decision, the veteran has submitted
reiteration of his own contentions and medical records
showing postservice treatment for schizophrenia. He has also
furnished medical treatises and articles dealing with
schizophrenia. The veteran has also advanced new contentions
attributing his schizophrenia to various toxic exposures
during his period of service. The veteran's statements
concerning his belief that his schizophrenia results from
service or service incidents are lay statements which do not
constitute competent evidence as to the presence of such
disorder or as to its etiology. Espiritu v. Derwinski, 2
Vet.App. 492 (1992). There has been no medical evidence or
opinion presented which tends to show that the veteran's
current schizophrenia is of service origin. The veteran has
presented general information from the medical literature,
but has provided no specific medical evidence or opinion
which would tend to show that his schizophrenia had its
inception during service or as a result of any service
incident. There has also been no evidence presented which
would tend to show that the veteran's schizophrenia was
manifested to a degree of 10 percent during the first
postservice year. The veteran's contentions, standing alone,
are insufficient to warrant reopening this claim.
While the veteran has furnished evidentiary material related
to his schizophrenia which is new, the evidence is not
material because it describes the recent status of his
condition or describes schizophrenia in general, but does not
serve to relate his schizophrenia, either directly or
presumptively, to his service which ended in 1965.
Consequently, the additional evidence submitted by the
veteran since the RO's November 1967 rating decision is not
relevant and probative and does not raise a reasonable
possibility that, when viewed in the context of all the
evidence, both new and old, it would change the outcome.
Therefore, it is not new and material, and the claim may not
be reopened.
II
Next, we address the veteran's attempt to reopen his claim
for service connection for a back disorder. The above-cited
regulatory criteria, with the exception of the presumptive
provision, also apply to this claim. To warrant reopening of
the prior claim, the newly presented or secured evidence must
not be cumulative of evidence of record at the time of the
last final disallowance and must tend to prove the merits of
the claim as to each essential element that was a specified
basis for that last final disallowance of the claim. See
Evans. Hence, to reopen the claim for service connection for
a back disorder, the veteran must submit evidence tending to
show that his current back disorder is of service origin or
became worse in service.
Since the RO's last final decision in 1978, the veteran has
submitted reiteration of his own contentions and medical
records showing postservice treatment for his back. However,
he has submitted no medical records which relate his current
back disorder to his service, which ended in 1965. The
veteran's statements concerning his belief that his back
disorder is the result of service represent lay statements
and do not constitute competent evidence as to the presence
of a back disorder or its etiology. See Espiritu. There has
been no medical evidence or opinion presented which tends to
show a current back disorder is of service origin. The
veteran's statements standing alone are insufficient to
reopen this claim.
Again, the veteran has furnished evidentiary material which
is new; however, it is not material because it does not
address the critical service period. The veteran has failed
to establish that he had a chronic back disability during
service. While the veteran was treated for back complaints
during service, a chronic back disability was not identified
and the veteran has provided no competent evidence which
tends to show that the veteran had a chronic disability of
the back during service or that his current back disability
is of service origin. Therefore, the additional evidence is
not new and material, and this claim may not be reopened.
III.
With respect to the two remaining claimed disabilities, the
threshold question to be answered is whether the appellant
has presented well-grounded claims. A well-grounded claim is
one which would justify a belief by a fair and impartial
individual that the claim is plausible. If he has not, his
claims must fail and there is no further duty to assist him
because additional development would be futile. 38 U.S.C.A.
§ 5107; Murphy v. Derwinski, 1 Vet.App. 78 (1990). In the
present case, the veteran has failed to demonstrate that he
has the remaining two conditions for which he seeks service
connection. Service medical records are negative as to the
presence of PTSD or the claimed exposure to DDT and other
chemical agents claimed by the veteran.
Service connection may be granted for disability resulting
from disease or injury incurred in or aggravated by service.
38 U.S.C.A. § 1110, 1131. Service connection is established
by demonstrating that a current disability had its inception
during service or if it preexisted service that it was
aggravated therein.. While the veteran contends that he has
PTSD, there is no competent evidence that he currently has
PTSD.
A well-grounded claim for service connection requires, at the
least, a showing that the veteran now has the claimed
disorder. Rabideau v. Derwinski, 2 Vet.App. 141 (1992).
PTSD was not present during service and has not been
demonstrated subsequent to service. Since there is no
demonstrated disability for which service connection could be
granted, the claim for service connection for PTSD is not
well grounded. The Board has considered the veteran's
statements claiming he has PTSD. However, as a layman, the
veteran is not competent to render an opinion regarding
medical diagnosis. See Espiritu.
With respect to the claim for service connection for
residuals of exposure to DDT and various chemical agents, the
Board again notes that in order for service connection to be
granted, a disability must be demonstrated. While the
veteran claims exposure to DDT and various chemical
substances, he has provided no competent medical evidence to
show that such claimed exposure has resulted in any current
disability. The mere exposure to a substance is insufficient
to warrant service connection unless there is a residual
disability resulting therefrom. The veteran's claims of
exposure have not been verified; however, there is no medical
documentation of record to show that the veteran currently
has any disability which could be medically related to the
claimed exposures. (This does not include the veteran’s
bronchitis, which will be discussed separately in the remand
section of this decision). The veteran’s unsubstantiated
claim of disability is insufficient to establish the presence
of such disability in the absence of any supporting medical
evidence. See Espiritu. Also, as noted above, a well-
grounded claim for service connection requires, at the least,
a showing that the veteran now has the claimed disorder.
While the veteran claims exposure, there is no demonstrated
disability resulting from the claimed exposure for which
service connection could be granted. Since there is no
demonstrated disability for which service connection can be
granted, the claim is not well grounded. See Rabideau.
The Board has carefully considered the veteran's contentions
and the voluminous material related to chemical substances
and exposure submitted by the veteran. However, the Board
notes that the materials submitted are general in nature and
do not serve to relate any current disability to the
particular circumstances of this veteran’s service. The
record fails to identify any current disability which is
shown by competent evidence to be related to the claimed
exposures in service. Thus, the claim is not well grounded.
ORDER
The appeal to reopen the claims of entitlement to service
connection for schizophrenia and a back disorder is denied.
Service connection for PTSD and for residuals of exposure to
DDT and other chemical agents is denied.
REMAND
The veteran seeks service connection for bronchitis,
indicating that he was treated for upper respiratory
infections during service which were a precursor of his
current bronchitis. The veteran has also advanced a theory
of entitlement that his bronchitis is related to exposure to
mustard gas.
As noted above, the veteran's claim for service connection
for exposure to DDT and various chemical agents has been
denied as not well grounded, because there is no alleged
current residual disability shown. However, this is not the
case with respect to the veteran's claim for service
connection for bronchitis, which he claims as secondary to
mustard gas exposure. The veteran has bronchitis and the
regulatory criteria provide a presumption of a relationship
between mustard gas exposure and subsequently developing
chronic bronchitis. See 38 C.F.R. § 3.316. There remains
the question of whether the veteran was, in fact, exposed to
mustard gas. In this regard, the Board notes that a January
1995 Department of the Army letter indicated that while the
veteran's exposure to mustard gas could not be verified by
them, such verification might be provided by the United
States Army Chemical and Biological Defense Agency. The
address of the agency was provided, but no further action was
taken by the RO to obtain these records.
In view of the foregoing, the veteran has a potentially well-
grounded claim which requires further development to
determine if there was exposure to mustard gas. Accordingly,
the case is REMANDED for the following action:
The RO should obtain verification of the
veteran's exposure to mustard gas from
the Commander, United States Army
Chemical and Biological Defense Agency,
ATTN: AMSCB-CIH (Mr. Smart) Aberdeen
Proving Ground, Maryland 21010-5423.
When the above is accomplished, the RO should review the
case. If this claim remains denied, the veteran should be
furnished an appropriate supplemental statement of the case
and the case should be processed in accordance with current
appellate procedures. The purposes of this REMAND are to
obtain clarifying data and to assure due process of law.
GEORGE R. SENYK
Member, Board of Veterans' Appeals
The Board of Veterans' Appeals Administrative Procedures
Improvement Act, Pub. L. No. 103-271, § 6, 108 Stat. 740, 741
(1994), permits a proceeding instituted before the Board to
be assigned to an individual member of the Board for a
determination. This proceeding has been assigned to an
individual member of the Board.
NOTICE OF APPELLATE RIGHTS: Under 38 U.S.C.A. § 7266 (West
Supp. 1995), a decision of the Board of Veterans’ Appeals
granting less than the complete benefit, or benefits, sought
on appeal is appealable to the United States Court of
Veterans Appeals within 120 days from the date of mailing of
notice of the decision, provided that a Notice of
Disagreement concerning an issue which was before the Board
was filed with the agency of original jurisdiction on or
after November 18, 1988. Veterans’ Judicial Review Act, Pub.
L. No. 100-687, § 402 (1988). The date that appears on the
face of this decision constitutes the date of mailing and the
copy of this decision that you have received is your notice
of the action taken on your appeal by the Board of Veterans’
Appeals. Appellate rights do not attach to the issue
addressed in the remand, because a remand is in the nature of
a preliminary order and does not constitute a decision of the
Board on the merits of your appeal. 38 C.F.R. § 20.1100(b)
(1995).
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